People v. Polite

• Decision Date: 19 September 2018
• Docket Number: Ind. No. 2771/99,2011–10426
• Parties: The PEOPLE, etc., respondent, v. Mark POLITE, also known as Mark Bogle, appellant.
• Court: New York Supreme Court — Appellate Division

164 A.D.3d 1372
83 N.Y.S.3d 607

The PEOPLE, etc., respondent,
v.
Mark POLITE, also known as Mark Bogle, appellant.

2011–10426
Ind. No. 2771/99

Supreme Court, Appellate Division, Second Department, New York.

Argued—May 4, 2018
September 19, 2018

83 N.Y.S.3d 609

The Legal Aid Society, New York, N.Y. (Heidi Bota of counsel), for appellant, and appellant pro se.

Eric Gonzalez, District Attorney, Brooklyn, N.Y. (Leonard Joblove and Victor Barall of counsel), for respondent.

WILLIAM F. MASTRO, J.P., MARK C. DILLON, HECTOR D. LASALLE, FRANCESCA E. CONNOLLY, JJ.

DECISION & ORDER

Appeal by the defendant from a resentence of the Supreme Court, Kings County (Thomas J. Carroll, J.), imposed November 2, 2011, upon the granting of his motion pursuant to CPL 440.20 to set aside a sentence of the same court imposed October 18, 1999, upon his conviction of attempted murder in the second degree, upon a jury verdict.

ORDERED that the resentence is affirmed.

In 1999, the defendant was convicted, after a jury trial, of attempted murder in the second degree for shooting Tyrone Bowman three times. The defendant was sentenced as a persistent felony offender, based upon three prior felony convictions, to an indeterminate term of imprisonment of 20 years to life. This Court previously affirmed the judgment on direct appeal (see People v. Polite, 291 A.D.2d 511, 738 N.Y.S.2d 235 ).

In December 2010, the defendant successfully moved pursuant to CPL 440.20 to set aside the sentence as illegal on the ground that, in adjudicating the defendant a persistent felony offender, the Supreme Court had failed to comply with the statutorily mandated procedures by, among other things, failing to provide the defendant with a full and fair opportunity to controvert the constitutionality of the predicate felony convictions at a persistent felony hearing (see CPL 400.20 ). Subsequently, a persistent felony offender hearing was held, after which the court found the defendant to be a persistent felony offender and, as such, resentenced him to an indeterminate term of imprisonment of 20 years to life.

Penal Law § 70.10(1)(a) defines a persistent felony offender as "a person, other than a persistent violent felony offender ..., who stands convicted of a felony after having previously been convicted of two or more felonies." The procedure for determining whether a defendant may be subjected to increased punishment as a persistent felony offender mandates a "two-pronged analysis" ( People v. Smith, 232 A.D.2d 586, 586, 649 N.Y.S.2d 444 [internal quotation marks omitted]; see CPL 400.20[1] ; People v. Gaines, 136 A.D.2d 731, 733, 524 N.Y.S.2d 70 ; People v. Oliver, 96 A.D.2d 1104, 467 N.Y.S.2d 76, affd 63 N.Y.2d 973, 483 N.Y.S.2d 992, 473 N.E.2d 242 ). "Initially, the court must determine whether the defendant is a persistent felony offender as defined in subdivision 1 of section 70.10 of the Penal Law, namely, that he previously has been convicted of at least two felonies, and secondly, the court must determine if it ‘is of the opinion that the history and character of the defendant and the nature and circumstances of his criminal conduct are such that extended incarceration and lifetime supervision of the defendant are warranted to best serve the public interest’ " ( People v. Oliver, 96 A.D.2d at 1105, 467 N.Y.S.2d 76, quoting CPL 400.20[1][b] ; see People v. Prindle, 29 N.Y.3d 463, 467, 58 N.Y.S.3d 280, 80 N.E.3d 1026 ; People v. Smith, 232 A.D.2d at 586, 649 N.Y.S.2d 444 ).

83 N.Y.S.3d 610

The defendant challenges the constitutionality of the persistent felony offender statutory scheme, although he acknowledges that the Court of Appeals has repeatedly found it to be constitutional and repeatedly rejected his argument that it violates Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 and his due process and Sixth Amendment rights (see People v. Prindle, 29 N.Y.3d at 465–466, 58 N.Y.S.3d 280, 80 N.E.3d 1026 ; People v. Giles, 24 N.Y.3d 1066, 1071–1072, 2 N.Y.S.3d 30, 25 N.E.3d 943 ; People v. Quinones, 12 N.Y.3d 116, 130, 879 N.Y.S.2d 1, 906 N.E.2d 1033 ; People v. Rivera, 5 NY3d 61, 69, 800 N.Y.S.2d 51, 833 N.E.2d 194 ; People v. Rosen, 96 N.Y.2d 329, 335, 728 N.Y.S.2d 407, 752 N.E.2d 844 ). In Prindle, the latest case to consider the issue, the Court " ‘again [upheld] the constitutionality of New York's discretionary persistent felony offender sentencing scheme and further [held] that defendant's constitutional rights were not violated’ " ( 29 N.Y.3d at 465–466, 58 N.Y.S.3d 280, 80 N.E.3d 1026, quoting People v. Quinones, 12 N.Y.3d at 119, 879 N.Y.S.2d 1, 906 N.E.2d 1033 ).

Although it is within the province of the Court of Appeals to reexamine its earlier precedent and determine whether a compelling justification exists to overrule that precedent (see People v. Peque, 22 N.Y.3d 168, 194, 980 N.Y.S.2d 280, 3 N.E.3d 617 ), that right of reexamination is not within our province. Simply stated, this Court cannot discount or disregard the Court of Appeals' determination in Prindle and numerous other cases, and, if there is to be any shift in that precedent, the change in the law is for the Court of Appeals to pronounce (see Jiannaras v. Alfant, 124 A.D.3d 582, 586, 1 N.Y.S.3d 332, affd 27 N.Y.3d 349, 33 N.Y.S.3d 140, 52 N.E.3d 1166 ; Ellis v. Gold, 204 A.D.2d 261, 266, 611 N.Y.S.2d 587 ).

Contrary to the defendant's contention, the Supreme Court providently exercised its discretion in determining "that the history and character of [this] defendant and the nature and circumstances of [this defendant's] criminal conduct indicate that extended incarceration and life-time supervision will best serve the public interest" ( Penal Law § 70.10[2] ). The court's determination in that regard is supported by the record (see People v. Harris, 117 A.D.3d 847, 860, 985 N.Y.S.2d 643, affd 26 N.Y.3d 1, 18 N.Y.S.3d 583, 40 N.E.3d 560 ; People v. Dixon, 107 A.D.3d 735, 736, 967 N.Y.S.2d 87 ; People v. Maxwell, 22 A.D.3d 607, 802 N.Y.S.2d 505 ; People v. Perry, 19 A.D.3d 619, 800 N.Y.S.2d 25 ).

The Supreme Court did not improvidently exercise its discretion in denying the defendant's application to relieve defense counsel and appoint a new attorney to represent him. "The right of an indigent criminal defendant to the services of a court-appointed lawyer does not encompass a right to appointment of successive lawyers at defendant's option" ( People v. Sides, 75 N.Y.2d 822, 824, 552 N.Y.S.2d 555, 551 N.E.2d 1233 ; see People v. Washington, 25 N.Y.3d 1091, 1095, 13 N.Y.S.3d 343, 34 N.E.3d 853 ; People v. Cheeks, 107 A.D.3d 1013, 1014, 966 N.Y.S.2d 893 ). However, courts must "carefully evaluate serious complaints about counsel," and "should substitute counsel when a defendant can demonstrate good cause" ( People v. Linares, 2 N.Y.3d 507, 510, 780 N.Y.S.2d 529, 813 N.E.2d 609 [internal quotation marks omitted]; see People v. Smith, 18 N.Y.3d...